Education and Training (Early Childhood Education Reform) Amendment Bill

Members, we now come to Part 2, the debate on clause 14—“Consequential amendments to other legislation”—and Schedule 2. The question is that Part 2 stand part.

Part 2 consists of one clause. It is clause 14, “Consequential amendments”, where it says, “Amend the legislation specified in Schedule 2 as set out in that schedule.” It goes on in Schedule 2 to make a series of amendments to the early childhood and the playcentre regulations, both from 2008. These are changes and cross-references, replacing the word “Secretary” with “Director of Regulation” for example, because as we know, the purpose of this bill is, in part, to create the Director of Regulation who takes on the role the secretary would have played.

Thank you, Madam Chair. Part 2 has been described, previously this afternoon, as being mainly technical, and I think he’s given us a flavour of his view of that. Indeed, it could look administrative. But actually, the system-level impact of Schedule 2 is significant. That is because it operationalises the full removal of the Ministry of Education from regulation decision-making in early childhood education (ECE).

This is about the decoupling. Unfortunately, we were not really able to interrogate what that would mean in the previous debate, which was shut down rather early, in my view, because there were supplementary questions around the level of uncertainty in the roles of the secretary and the new director. What this schedule does is it replaces the “Secretary” with the new “Director of Regulation” in every clause that deals with licensing, and there are many of those and we will have some questions around that, specifically around including the conditions of licence and suspension and withdrawal of licences.

It also regulates monitoring and inspection. We did not get to interrogate the lack of safeguards around the new enforcement powers that the director has, which are broader than the secretary. Again, enforcement actions: the same issue there around safeguarding, notification to parents, notices of intention to take action, compliance processes, minimum standard check, permission to vary ratios and premises uses, and many of the clauses there are also relating to that.

I don’t think we heard adequate answers from the Minister regarding some of the questions that were raised by the Green Party on that. That speaks to educational quality, to ECE pedagogy, to curriculum support, teaching workforce issues, and licensing and regulation that will now sit in different agencies. Let’s remember, also, that the licensing is currently done by Ellen MacGregor-Reid, who has been around this building for about 10 years. There will be transitional situations that will arise. We haven’t been able to interrogate what will happen to the case law and the decision-making whakapapa, if you like, when that changes. As I’ve said, the Director of Regulation has broader delegation powers than the secretary did, but there are no safeguards in this schedule.

We still have unanswered questions around conflicts of interest, private sector influence, profit -driven quality drift, and less focus on education. I want to ask the Minister a few questions specifically, but I also want to pick up on something that he himself said, which was he talked about this being a bill of best practice—that this is about having separation of powers essentially, and he mentioned that in relation to regulation. But I would like to point the Minister to the regulatory impact statement where there was a lack of consultation. But also, there have been select committee submissions that have talked about the strong pedagogical oversight and effective transition from ECE to school requiring clear public accountability and having a model where the secretary and director role are together, where there is one overarching governance structure.

ECE may be the outlier as far as regulation goes, but that is what the OECD report says. It’s in a report called Starting Strong. It was alluded to by submitters. In page 126 to 129 it talks about when you decouple there are uneven service qualities, there’s confusion amongst parents, there’s regulatory inconsistency, weak accountability, gaps between educational goals and regulatory enforcement. On page 21 of that report, it also, basically, foreshadows what this bill is exactly doing in Schedule 2 by wholesalely transferring over these regulatory-making powers without oversight by creating a semi-autonomous regulator, it allows a third-party delegation of regulatory functions, and it moves oversight away from an education-led framework.

That raises a whole lot of questions, which I will be asking, about accountabilities, because we don’t see those powers elicited and alluded to and framed correctly in legislation. This is just a wholesale of moving from one role to another under, presumably, secondary regulation.

The member is attempting to debate a series of policy questions; these were resolved in the debate on Part 1, and, indeed, in the select committee and in the first and second readings, as well as the policy developments and the Ministry for Regulation’s review, which engaged thousands of people as far back as last June, nearly 18 months ago. This is a schedule that changes a series of words—mainly replacing “Secretary” with “Director of Regulation” in order to give the consequential amendments to the things agreed in Part 1.

Furthermore, the member has made a suggestions that this somehow moves the regulator to the Education Review Office. It does not do that. There is a separate bill before the House which does do that, and we can debate that in that bill, in the appropriate place. So far as this bill goes, it simply shifts the position within the Ministry of Education from the current secretary to someone appointed by the secretary. And, by the way, Ellen MacGregor-Reid, great as she is, has been in the job for two weeks. The person who is appointed to this role might well have longer experience than her.

Thank you, Madam Chair. I do agree with the previous speaker, Ingrid Leary, that this section—although, despite what the Minister is saying, it’s a switching of various numbers—simply highlights the scope of the role of the Director of Regulation in comparison to the Secretary for Education. Now, before, when we were discussing Part 1—and I’m going to say the same thing that the Minister said to me: if the Minister had listened to my questions carefully, the Minister would have remembered that I didn’t ask regarding the interaction between the Director of Regulation and the secretary but, in fact, the Director of Regulation and the deputy secretary. The instance I raised was around the playcentre asbestos, because it was the deputy secretary who had to manage some of that—specifically, the Deputy Secretary of Operations and Integration.

Coming to Schedule 2 of Part 2, I still would like to know from the Minister how that organisational chart will potentially look when you’re looking at, potentially, a lateral appointment. Again, I stress that the Director of Regulation will report to the secretary, but so would other deputy secretaries. How would the Director of Regulation interact with the broader Ministry of Education (MOE) when you are determining some of these regulations, as we see in Schedule 2? Again, a person may have that in title, maybe functions in power, but how would that work in terms of potentially overstepping what is within their mandate? Or if the mandate overlaps between the role of a secretary or deputy secretary and the role of the Director of Regulation, especially when things overlap in multiple areas? Early childhood services, for one, as well as schools, as in the example that I provided previously. I do want to check with the Minister that, for someone who does say they want to see a reduction in regulation and bureaucracy, this has inadvertently created a different layer of bureaucracy that someone needs to manage or look into. That covers most of the regulations, specifically, when you’re looking at some of the ones that are to do with even, let’s say, for example, ratio, which is Schedule 2 of the regulations.

Just a simple question to the Minister: how does the Director of Regulation interact with the broader MOE in that organisational chart—again, not to do with the secretary?

Thank you, Madam Chair. I can only reiterate that the member Dr Lawrence Xu-Nan is openly trying to relitigate debate from Part 1, where the questions were addressed. He may not have liked the answers, but they were certainly given. This part is very narrow; it simply makes consequential amendments to give effect to matters that we’ve already debated.

Just before I call the next speaker, this schedule and this part, which I can see is really narrow, does actually bring in the fact that you can talk about the secretary and the Director of Regulation, because that is, really, as I can see, what this whole schedule is about. Then it refers to various other regulations that are affected by the change that is being proposed.

Thank you, Madam Chair. Yes, just to give an example of that: if we look at what is being amended in the early childhood services regulations, there are quite a number of regulations to do with applications for licences, or a probationary licence, classes of licences, home-based licences, suspension of licences, circumstances where licences are changed or replaced, appeals, health and safety, and so on.

These are quite significant matters of public interest when it comes to the safety and efficacy of early childhood centres and play centres. I don’t think we have had adequate explanation from the Minister, either in this debate or in previous ones, about the areas where the regulatory impact statement itself has identified that there is some area of potential confusion and overlap between the role of the secretary and the director. Just in relation to the Minister’s comment about the secretary, he is definitely right—she has just been appointed in the last two weeks. The point is that she has been in the role for about 10 years. What happens when you have a system where somebody has got that institutional expertise and knowledge and also case knowledge versus a director that is no longer under the auspices of or accountable to the Ministry of Education? I think that’s really what we are trying to interrogate here in Schedule 2.

If we look at new regulation 41(1A), in Schedule 2, it says that “the Secretary is the Minister’s principal policy adviser.” Then we’re looking at what the relationship is between those two roles. I guess the questions we’d like to know from the Minister is, really clearly for Hansard, who sets the standards, who monitors them, and who do affected parties appeal to under the regulations? Say, for example, there’s a revocation of a licence or a change to the circumstances of a licence under the previous early childhood services regulations 39 and 39A, who handles complaints, and also who really does oversee the director? I think the critical question here was difficult to bring out in the previous debate because there were a number of clauses that we didn’t get to. The question is: who does the director report to? It is correct to say that, in reality, it is the Minister, because once again we are seeing from this Government a lot of power vested in a particular Minister. Particularly, we’ve got a director who is no longer beholden to the ministry.

I still haven’t heard an answer regarding whether Te Tiriti obligations are implicit given that Schedule 2 extends the director’s authority over kōhanga reo, puna reo, and bilingual units. The Minister has danced around the topic, but it would be very useful for those in the sector to understand, given that those are referred to. Does that mean Te Tiriti is extraneous, as he has said previously this afternoon, or is it implicitly conferred by this bill? I think he just needs to take a position—and I can guess what it is. It would be good for the public to know what that is, because then we have to query how the director’s authority extends over those when there are no Te Tiriti obligations to underpin those kōhanga reo, puna reo, and bilingual units.

The other question is: how will the ministry ensure system stewardship when they are no longer regulating early childhood education services? That is really what this debate is about. We’ve got this clever division of power between a secretary and a regulator, and one of them is beholden to the ministry and one of them is quasi-independent. There is some fuzziness around what the role is, particularly when it comes to secondary legislation and the regulation and the transitional arrangements. All of that looks like a way to avoid public accountability and scrutiny and to, really, allow more privatisation of the sector. Now, if that is not the case, I’d like to hear that from the Minister.

There is no other reason to wholesale replace “Secretary” with “Director of Regulation” under the schedule, which is really a wolf in sheep’s clothing, because it’s making it look like it’s distinguishing policy leadership. That is how the Minister has described it. In fact, it is all about avoiding accountability that the ministry needs to be accountable for—suddenly there’s this director out there in quasi-autonomous role, with some fuzzy kind of duties, who doesn’t have to respond to the ministry. It does come to policy, Minister, because that is essentially what the schedule is doing wholesale.

Thank you, Madam Chair. I can only reiterate, and it might be helpful for people at home: Schedule 2 says things like “in regulation”, “definition of contact person”, “replace ‘Secretary’ with ‘Director of Regulation’ ”, and it carries on like that for about two pages. We debated, in the previous part, what the Director of Regulation will do. We debated what the relation of the Treaty of Waitangi is. All we’re doing here is making the consequential amendment that since we agreed, in Part 1, that the Director of Regulation would exist and fulfil roles similar to those currently fulfilled by the secretary, we’re going to replace the word “Secretary” with “Director of Regulation” in quite a few different places. That’s all we’re talking about.

Before I call the next speaker, can I just say that I had been on select committee prior to coming here, so usually I would watch this kind of debate before I take on this role. But I do understand that this part is actually much more narrow and that a lot of what has been debated was covered in Part 1. However, we are in urgency, so, given that we are in urgency, I’ll give a little bit of leeway, but I will actually ask everyone to, very soon, make it much more narrow.

Thank you, Madam Chair. Actually, my question goes back to a question that wasn’t addressed and resolved, and you made a determination on that that it was in scope, and that was from my colleague Dr Lawrence Xu-Nan. It was around the relationship between the Director of Regulation and the deputy secretary.

I think this is really important because we need to understand what the relationship is between this new role and the entire ministry, and what it practically, actually means. I think we’ve heard a bit about the ideology around the reasons why the Associate Minister of Education has brought this to the committee, but we actually haven’t heard about, exactly, practically, how it would work. This part is narrowly defined, but there is that question around that relationship between the Director of Regulation and the deputy secretaries and, indeed, the rest of the ministry as well.

I also take the point made by Ingrid Leary around how these different regulations will follow through. We did talk about Te Tiriti o Waitangi in the previous part, but the question still remains around the benefits that come from Te Tiriti o Waitangi. I get that that side of the Chamber is allergic to Te Tiriti, but what about the things that it actually brings to the education sector—the quality of te reo Māori, making sure that kōhanga reo and puna reo are resourced? How does this practically work? And how does that relationship work between this new Director of Regulation and the deputy secretaries? It is fuzzy and it is grey, and that has been highlighted by members.

My questions are: what is that relationship between the Director of Regulation and the deputy secretaries, and, as an example, how will that work? For example, if we’re not going to have Te Tiriti o Waitangi—I think we should—how are you going to ensure language and cultural competency matches Māori pedagogy, Māori-medium pedagogy, which supports the wellbeing of those tamariki and mokopuna?

I move, That debate on this question now close.

The question is that the debate on this question now close. All those in favour, say Aye, to the contrary No. A party vote has been called for. The Clerk will conduct a party vote.

Point of order, Madam Chairperson. Sorry, but you didn’t declare a result. Did the Ayes have it or did the Noes have it before a party vote was called for?

Can I call it again—

Tom Rutherford: Yes.

CHAIRPERSON (Hon Jenny Salesa): —because I wasn’t really listening to who was louder, which is usually carried by voice.

The question is that Part 2 stand part.

Shanan Halbert’s tabled amendment to Schedule 1, inserting the words “in other legislation” into clause 126 of new Part 7 of Schedule 1, is out of order as not being in the correct form of legislation.

Shanan Halbert’s tabled amendment to Schedule 1, inserting the words “and responsibilities” into clause 126 of new Part 7 of Schedule 1, is out of order as not being in the correct form of legislation.

The question is that Shanan Halbert’s tabled amendment to Schedule 1, inserting “and responsibilities” into clause 127 of new Part 7 of Schedule 1, be agreed to.

Shanan Halbert’s tabled amendment to Schedule 1, inserting “previously” into clause 127(1)(a) of new Part 7 of Schedule 1, is out of order as not offering a serious alternative form of words.

The question is that Shanan Halbert’s tabled amendment to Schedule 1, inserting “and is not near completion” into clause 127(1)(b) of new Part 7 of Schedule 1, be agreed to.

Shanan Halbert’s tabled amendment to Schedule 1, inserting “or persons” into clause 127(1)(c) of new Part 7 of Schedule 1, is out of order as not offering a serious alternative form of words.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Schedule 1, inserting paragraph (d) into clause 127(1) of new Part 7 of Schedule 1, be agreed to.

The question is that Shanan Halbert’s tabled amendment to Schedule 1, amending clause 127(2) of new Part 7 of Schedule 1, be agreed to.

Dr Lawrence Xu-Nan’s tabled amendment to Schedule 1, replacing “all” with “and” in clause 127(2) of new Part 7 of Schedule 1, is out of order as not being in the correct form of legislation.

The question is that Shanan Halbert’s tabled amendment to Schedule 1, amending clause 127(3) of new Part 7 of Schedule 1, be agreed to.

The question is that Shanan Halbert’s tabled amendment to Schedule 1, inserting paragraph (c) into clause 127(4) of new Part 7 of Schedule 1, relating to documents still considered to be given by the secretary, be agreed to.

Shanan Halbert’s tabled amendment to Schedule 1, amending clause 126(5) of new Part 7 of Schedule 1, is out of order as not being in the correct form of legislation.

The question is that Shanan Halbert’s tabled amendment to Schedule 1, inserting paragraph (c) into clause 127(5) of new Part 7 of Schedule 1, be agreed to.

The question is that Shanan Halbert’s tabled amendment to Schedule 1, inserting paragraph (c) into clause 127(6) of new Part 7 of Schedule 1, be agreed to.

Shanan Halbert’s tabled amendment to Schedule 1, inserting “and is still held” into clause 128 of new Part 7 of Schedule 1, is out of order as not being in the correct form of legislation.

The question is that Shanan Halbert’s tabled amendment to Schedule 1, amending clause 128 of new Part 7 of Schedule 1 to insert text relating to privacy protections, be agreed to.

The question is that Shanan Halbert’s tabled amendment to Schedule 1, deleting clause 129 of new Part 7 of Schedule 1, be agreed to.

Shanan Halbert’s tabled amendment to Schedule 1, amending clause 129 of new Part 7 of Schedule 1 to insert text relating to early childhood education as a public good, is out of order as not being in the correct form of legislation.

Shanan Halbert’s tabled amendment to Schedule 1, amending clause 129 of new Part 7 of Schedule 1 to insert text relating to Te Tiriti o Waitangi, is out of order as not being in the correct form of legislation.

The question is that the Minister’s amendments to Schedule 2 set out on Amendment Paper 440 be agreed to.

Dr Lawrence Xu-Nan’s tabled amendments to Schedule 2, inserting the words “and consequences” in two places, are out of order as not offering a serious alternative form of words.